From October 2016 to March 2017 the team is joined by Guest Kats Rosie Burbidge and Eibhlin Vardy, and by InternKats Verónica Rodríguez Arguijo, Tian Lu and Hayleigh Bosher.

Monday, 23 February 2015

EPO, SUEPO and a question of governance: why a word from the Baroness would be welcome

These are troubled times indeed in the annals of the European Patent Office.  This moggy understands from a SUEPO notice (reproduced in material part, below) that the union has called off its proposed march on the British consulate in Munich this Wednesday in the face of potential liability for breaches of obligations under the European Patent Convention and Service Regulations. SUEPO, besides taking legal advice, has called for a fresh demonstration on Tuesday 25 March.

Readers' comments on earlier posts on this increasingly bitter dispute have raised many issues, including the propriety and legality of EPO staff members reaching out beyond the EPO to communicate their concerns to national representatives who form part of the EPO's Administrative Council (AC), to national parliaments or indeed to any source other than the EPO itself.

One organ of the EU that seems to be
working fine is in the Royal Albert Hall
It seems to this moggy that there are various issues causing friction right now. These include the independence of those who perform judicial functions, the conditions under which staff are employed, human rights violations and the apparent degeneration of staff morale. While each of these issues must be separately addressed, there are also wider questions hanging over the EPO which relate to the effectiveness of its governance and the extent to which the organs of the European Union can influence and control the operation of the body that will be responsible for the hoped-for success of the unitary patent system.  These are questions that are asked not so much in the streets of Munich and The Hague but wherever patent owners and their professional representatives are to be found across the length and breadth of the innovating parts of the European Union.

Enough people have now asked whether the AC is a truly effective body for overseeing [not "overlooking"] and controlling the operations of the European Patent Office for the patent communities across Europe and beyond to expect some sort of answer.  The AC cannot answer this question themselves since it has political ramifications but the AC is made up of civil servants who cannot compose and deliver a political answer.  The John Altys and Sean Denneheys of this world are there to participate in the activities of the AC but they are there as representatives of their national governments and it is difficult for anyone in their position to take initiatives without instruction or guidance from above.

When the fur starts to fly, call for the Baroness
This moggy would however love to hear from the politicians themselves.  The United Kingdom, for example, has a Minister for Innovation, Baroness Neville-Rolfe (full title: Parliamentary Under-Secretary (Department for Business, Innovation and Skills) (Intellectual Property)).  A word from the Baroness would be so welcome. Something along the lines of "The British Government is aware of the concerns that have been expressed with regard to the governance of the EPO and ... is content that these concerns are being adequately addressed/is taking active steps to deal with them/is confident that the AC has the matters in question well in hand/is in discussion with representatives of other countries".  As it is, the less the patent community hears from Europe's political leaders, the more they fear that they are not being heard at all, which is why they not unreasonably seek to carry their complaints and their anxieties beyond the four walls of Eponia.

So, dear Baroness, and your colleagues and equivalents in other countries represented on the AC, can you offer any words of assurance and comfort to your own patent-based industries and professionals, as well as to those of your own nationals who work at the EPO, that your governments are aware of the issues and understand them, and that everything is either already all right or will be so once you have fixed it?  This moggy knows that some of your colleagues and advisers are reading this since they are regular followers of this blog and have sometimes corresponded with her and the IPKat. Perhaps they will be so kind as to draw this plea to your attention.

Meanwhile, here's the SUEPO statement:
Wednesday 25 February – The British consulate

SUEPO Munich planned and announced a march from the EPO Isar building to the British consulate in Munich. The local authorities have granted approval for this demonstration .

With an open letter dated 20.02.2015 Mr Battistelli informed the Chair of the Munich SUEPO Committee that: “the planned demonstration is considered contrary to the interests of the Office and likely to damage its image. (…) Should the planned demonstration actually take place, this would constitute a breach of the applicable legal framework and those concerned would be held liable for the breach of their obligations under the EPC and the Service Regulations.”

Mr Battistelli takes offence at a letter dated 11.02.2015 and signed by the Munich Chairperson that allegedly entails “derogatory comments about a national delegation and accusations against its individual members”. The allegedly individual attacks are the purported reason for forbidding the demonstration. The “offensive” letter of SUEPO can be found here. It is not significantly different from those previously sent to the French and Danish consulates .... Mr Battistelli’s letter reveals, better than any demonstration could, the extent to which EPO staff and their representatives are being denied fundamental rights such as the right to freedom of association and to freedom of expression.

Mr Battstelli’s letter comes only 3 days after a judgment by a Dutch court that criticised the EPO for limiting staff’s right to strike and for refusing collective bargaining. Under point 5.3 the Dutch court stated: “It lies in the nature of the activities of a Staff Union like SUEPO that they are allowed to criticise the (representatives of) the employer, also via internal channels.” But maybe a French translation was not yet available when Mr Battistelli signed his latest letter.

What next?
Not wishing to take any unnecessary risks SUEPO has decided to cancel the planned demonstration and, before taking any further action, will seek legal advice about how to handle the present situation. The battle is, however, not over. The EPO Administrative Council meets on 25 and 26 March in Munich to discuss the planned health reform which would seriously weaken the position of our most vulnerable staff, namely those on long-term sick leave or on invalidity. Moreover, by obliging staff unable to work to remain at the place of employment for at least 10 years it breaches another fundamental right, namely the right to freedom of movement.

NEXT DEMONSTRATION

TUESDAY 25 MARCH IN FRONT OF THE ISAR 
[Katnote: 25 March does seem to be a Wednesday ...] 

As the host country of our biggest place of employment, Germany has a special responsibility towards the EPO and its staff. The March demonstration will therefore be aimed in particular at the German delegation and the German government with the question whether Germany is content to allow all of this to happen on its soil.

62 comments:

MaxDrei said...

25th March. Tuesday? Really?

Magnus said...

I am concerned about all this because it seems to have a real impact on the quality of the work products of the EPO: I see more and more poorly drafted search opinions, and poor searches citing irrelevant prior art references in cases in which I know that there is more relevant prior art that would have been easy to find. It this the reaction of examiners to a system which rewards quantity over quality?

Anonymous said...

Tuesday 25 March 2025? Might be a bit late by then.

Anonymous said...

One voice that I am missing in this debate is the voice of the primary users of the patent system, the European patent attorneys. Admitted, there are many (being one myself) that have spoken anonymously or not via this forum, but there has not yet been an official point of view from epi. Yet, epi as representing over 10,000 professionals, shoudl have concerns about the happenings at the EPO and about the possible harm to the system and the quality of the patent application and granting procedure.
Both EPO and epi are involved in the education and examination of the epi members, yet epi seems to be unaffected by the struggle of the EPO employees. It is time to raise our voice as organisation and to express our concerns about the situation.
If epi is afraid that such an action would be counterproductive, they should realise that the EPO examiners will feel supported. What would epi rather have: the favor of management that changes every 5 or 10 years or the favor of the examiner corps with whom they will practically deal with in everyday practice?

Anonymous said...

Magnus,
Perhaps a reaction but maybe also a consequence of the threat of warning letters for not reaching production targets? While poor quality should be picked up eventually, you will first get high(-er) production, particularly from those under pressure to produce numbers or else.

Anonymous said...

Nice visual pun from the IP Kat to show the logo of AC/DC next to this blog post:
Adminstrative Council / Destructive Council?

Anonymous said...

I have always considered technical patent examination to be work of the highest academic caliber. It is application of source criticism of the same kind that is used in historical research, and it is also a question of distilling out the best concise definition of the elements that contribute to obtaining the effect of the invention. It is the effect and its improvement over prior art that is desirable by society. The examiner has to be at the same time the instance that weighs the evidence provided and the person who understands deficiencies in the phrasing of the claims. This examiner will actually contribute towards obtaining a suitable balance between what the inventor can reasonably prevent others from doing and what society may do without risk.

The European examination was from the beginning aiming for a quality that was in the neighborhood of the historical German (and Dutch) requirements, but perhaps a bit more lenient, because a refusal has very few chances of being corrected. One, only, in fact. Over the years a practice has developed, guided by the decisions of the Board of Appeal. This has brought considerable strength to a uniformity of approach. The Boards of Appeal have used input from society (in the form of oppositions) to uncover and decide on many details, and they have eventually made it into the Guidelines for Examination.

However, on the other side, there have been administrative wishes for streamlining and for savings in the efforts to be used on any one application, despite the unlimited variety in technical content and quality of expression of the applicant. The first initiative was to join search and examination after it had been deliberately separated at the outset. Invariably, there will be those individuals who are better searchers and those who are better examiners, but instead of hiring future examiners from a pool of searchers, both were now doing both. This meant that fewer individuals were involved in the complete examination from search to decision. One of the arguments was that it was not desired that the technical examiner should pull prior art from a private stash and introduce it into the examination, forgetting that the examiners mostly had high academic degrees and were specialists in their respective fields.

Most users of the European route will have experienced, in one way or the other, that examination has become much more rote and ticking boxes. The administration does not see the reduction in the possibilities for providing quality in the work, because that is high, per definition, and only the savings in time, and hence increase of throughput, have been in their minds.

The EPO quality is like gas leaking from a balloon, and those who know about it first-hand, examiners, are apparently not permitted to speak up. If a veterinary scandal or a meat scandal becomes known, society is very satisfied with receiving first-hand information, and corrective initiatives are promptly taken. If the basis for encouraging inventiveness is rotting, nobody reacts. Hands are either wrung or sat on.

It would be an important message if Munich attorneys, who have supported demonstrations in the past, would carry out a skeleton demonstration on Wednesday according to the original ideas of SUEPO, albeit without the participation of SUEPO members. They have been stymied in their calls of “gas leaks”. But it will probably rain on Wednesday, and neither the Press, nor protesters will appear.

Anonymous said...

As a European Patent Attorney I am increasingly concerned about cases already before the EPO, and when clients chose how to proceed at the end of the priority year, we will be having discussions about pros and cons of all routes including alternatives to EPC. It is the emphasis in that conversation that has/will change. If I could avoid the EPO I would.

Anonymous said...

I am outraged.

The Kat is regurgitating SUEPO propaganda while refraining from publishing the official Communiques of Benedictus Magnus decrying the interfering busybodies of the Hague judiciary.

Shame on you for your one-sided and biased reporting of these matters !

Disgusted of Tunbridge Wells

Anonymous said...

An examiner meeting their numbers should be evaluated for meeting numbers properly.

Any examination that can be shown to have been merely rubber-stamped (either rubber stamped "Rejected" or rubber stamped "Granted," should be removed from an examiner's count and if the "examination" can be shown to be egregiously sloppy, then civil fines levied, and possibly criminal obstruction of justice charges brought to bear).

Enough already. You all have the power to quit jobs you don't like.

Anonymous said...

To anonymous 16:15:00 GMT
I think it´s better for the patent attorneys and for the applicants to keep quiet, or at least to remain anonymous.
It seems that the EPO president is blacklisting all his opponents.
If such thing happens in a European Institution/Agency (for example at the OHIM), and you feel that you are blacklisted, you may lodge a complaint:
- to the European Ombudsman ( http://www.ombudsman.europa.eu/en/home.faces ) : The European Ombudsman investigates complaints about maladministration in the institutions and bodies of the European Union.
- to the European Data Protection Supervisor (https://secure.edps.europa.eu/EDPSWEB/edps/lang/en/Supervision )
: The EDPS receives complaints from EU staff members as well as from other people who feel that their personal data have been mishandled by a European institution or body.
- to the European Parliament : ( http://www.europarl.europa.eu/aboutparliament/en/00533cec74/Petitions.html )
But bad luck, those very helpful institutions will not work for a problem at the EPO. If I´m not wrong, at the EPO, the only way to lodge a complaint is to address it to the EPO president.

Anonymous said...

Nobody cares for Epo examiners except Epo examiners. They can't defend them self so what ? Who cares really ? Go get other jobs in the real world if u can !!!!

Anonymous said...

"If I´m not wrong, at the EPO, the only way to lodge a complaint is to address it to the EPO president."

Alternatively, you can write to the Administrative Council who will in turn forward your correspondance to ........ the President !

Anonymous said...

How can a European Patent Attorney be blacklisted by the president of the EPO?
Is there something I am missing?

Anonymous said...

First and foremost - thank you Kat for this initiative, I sincerely hope that several, not only UK, ministers will start to take notice as things are getting sillier than necessary. The tenor of the comments above would seem to be that there are lots of issues, but one in particular keeps cropping up. I can add my experience to the list of those noticing a fall in quality. Might I be so bold as to suggest that this, above all other things, should be the decisive question? Industry (or at least government) must decide what quality they actually want and ensure it can happen. If you want patents with a high probability of validity, then not only the BoA, but also the examiners (especially in Opposition) need some support - but then a 20% production increase may not be the most appropriate form of support. If you only want registration, then be honest and say so outright rather than relying on alibi ISO9001, but then God help small/medium businesses. All other things can then follow on from this one crucial question.

Anonymous said...

Mr Battistelli issued today a communique in which he states that the Dutch judgement is wrong and announcing that the EPO, i.e. The President, will not follow it.
From bad to worse....

Anonymous said...

"Nobody cares for Epo examiners except Epo examiners. They can't defend them self so what ? Who cares really ? Go get other jobs in the real world if u can !!!!"

Is that because we don't need examined patents? Or is that BB speaking? Or is it both, since BB hails from a Patent Office (INPI) that has never yet examined a patent!

P.S.: It's "defend themselves", not "defend them self"

Anonymous said...

Anon 18:42
The EPO went through worse a long time ago, they're approaching catastrophic now at full speed on course to melt-down.

Anonymous said...

Above all our supreme leader .... Batti man himself

Anonymous said...

For such a witty examiner you prob heard of auto spell check ? No ? Or a spelling mistake changes what's true . That in France we use your work for us without having to do it. Who's the smart one now monsieur ?

Anonymous said...

I'm not an examiner, oh smart one!

MaxDrei said...

Good comment above, that France (the country of the President) has no inkling of "examined patent rights" with a presumption of validity. Compare Germany (and Holland), where the presumption is that patents granted after examination are Valid as Granted (which by the way is why 70% of all oppositions at the EPO are filed by German-speaking companies).

Now AC members, of those countries, which has the more successful record of successful innovation in manufacturing industry?

AC: do you want to follow your President, all the way to the French way (patent applications unexamined for validity) to increase national prosperity? Or should you hold on to something like the German model(as practised up to now by the EPO). Spare a thought for the damage to US manufacturing industry, caused by the USPTO issue of crap patents, willy-nilly, in the hapless pursuit of better performance figures and shorter backlogs.

The choice.....is yours.

LL said...

http://blog.iusmentis.com/2012/04/27/kun-je-in-nederland-de-rechtbank-minachten/

Is in dutch but message is that dutch law has no contempt of court like in USA. But instead it has "dwangsom" which means punishing amount and court will make it high if needed, like it did against IBM - see https://www.jurofoon.nl/nieuws/6242-minachting-van-de-rechtbank

Anonymous said...

As a European patent attorney, I cannot speak openly, because I have to protect the interests of my clients. However, I really urge the EPI to get publicly involved.

Anonymous said...

As an EPI member, I do not see the organisation having any right to speak out in support of EPO employees, especially not without the support of its members. I, for one, do not support the EPO employees in their battle.

I support moves to protect the independence of the BoA, but I see that as a different issue.

Of course, when SUEPO stands up for my rights I may think differently.

Meldrew said...

Article 4a EPC

Anonymous said...

Regarding the discussion with respect to the quality of searches at the EPO (I am an EPO examiner):

Before the introduction of the new career system as of beginning of this year, there were yearly targets, specifying a number of searches to be done. As long as 70% of this number was achieved, the examiner could be sure that he would not loose in comparison to others who achieved 100%. I would say, that most examiners actually tried to achieve their target, but if there were more difficult searches which needed more time, they could rely on the fact that they would not be worse off in comparison to their colleagues (who maybe had some easier searches). So it was actually no problem to spend more time on more difficult searches (e.g. which needed to search also neighboring fields in order to be complete).

With the new career system, as of beginning of this year, an examiner who does not reach the exact number, is 'punished' in comparison to his peers who reach their number. Since beginning of this year, I stop searching as soon as the time given to me for a search has elapsed, and I assess the patentability based on the search results - even though I may know that there is better prior art. I would say, that most of my colleagues have changed their way of working in the same way.

Of course, I would like to do my work (that I like) as best as possible, and I would say, that the results were better until end of 2014 - but if I take into account the boundary conditions, I have to compromise on either quality or quantity. The measurement of quantity is an accurate one, it's purely counting - the quality of the *search* is almost impossible to measure with the means available. Guess, where examiners focus under these boundary conditions...

Wouter Pors said...

Dear Merpel,

The members of the AC are not in a position to take part in a public debate on these issues and indeed, in the end it is for the governments and politicians to take decisions.
However, at least in The Netherlands the Ministry of Economic Affairs also has a standing committee on patents, in which ngo's are represented. Through these ngo's, the voice of the IP community is heard and their representatives are in-house counsels, judges, patent attorneys and lawyers. I am on this committee on behalf of AIPPI.
The committee has discussed and keeps discussing the ongoing issues at the EPO. I cannot go into detail, but I can tell you that we for instance fully support safeguarding and where necessary improving the independence of the Boards of Appeal.
I can also assure you that at least a number of AC members are taking the issues seriously. They are certainly not avoiding the debate. However, the AC is made up of representatives from 38 countries, which doesn't make reaching decisions at short notice easy.
Besides, the interests of the examiners are not the only interests to take into account. The IP community also has an interest in affordable and expedious examination of patent applications.
Taking a position on the issues at the EPO therefore requires a thorough understanding of the facts and careful consideration, but that is a process that is ongoing.

Wouter Pors
Bird & Bird

Merpel McKitten said...

To Wouter Pors:

Thank you so much for your comment. Both its content and the calm, balanced nature of its presentation are very welcome here.

I still feel that it would be appreciated by the wider IP community, consisting of people who do not belong to NGOs and organisations which have some sort of standing, if someone from our elected governments were to give an indication that they are at least appraised of the various issues and are addressing them.

Anonymous said...

Besides, the interests of the examiners are not the only interests to take into account.

I entirely agree that the interests of examiners are only of indirect importance. It might be good if the examiner-commenters realise this before expressing too much sorry for themselves.

However, that the EPO is decently managed should be of primary importance. At the moment, it simply is not. The president is getting out of control to the point that one has to wonder if all is well with him.

Why not simply comply with the court order (while filing an appeal)? It seems to me his outright refusal and display of contempt is totally unprecedented. Why stir up things further when everyone is already boiling?

Expeditious processing of patent applications is important, but must this come from year-over-year increases in productivity? Is it not more a question of hiring a sufficient number of examiners? Is productivity now so much worse than it has been in the past 35 years? I don't think so, I think it has improved quite a lot. Not necessarily together with quality though. Don't get me started on ISO 9001.

Of course tools have gotten better, so higher productivity is natural, but there is also a limit to the amount of information that a human brain can process in a given amount of time. Better tools can't change that. Simply deciding that next year's production will be 15% higher (or else...) is not good management.

It is easy for national delegations to hide behind the other 37. Nothing we can do anyway, and btw, we have a plane to catch. That's how things go. Ask your own delegation.

Anonymous said...

At anon. @ 22.04:
it seems to me that the matter has gone beyond the simple question of supporting EPO staff or not - it is now about whether 21st century Europe is willing to stand up to anyone who deprives fellow Europeans of the fundamental rights with which they have grown up (and while we are at it, anyone who considers himself above the courts of Europe).

Anonymous said...

Oh, how short memories are: it was not long ago that we were told by the EPO top management that the dispute came about because - remember! - examiners don't like to have to take Chinese prior art into account,
Next, management explained that the dispute was the work of a small minority of trouble makers and that the majority of EPO staff stood fully behind the management (which explains why about 1000 staff that took part in the march to the Royal Danish consulate),
Then the world was informed that the dispute was quite unnecessary because, after all, the EPO was practising "social democracy".
Finally, to cut a rather long list short, yesterday demonstrations outside EPO premises were said to be permissible, despite the fact that during the last AC meeting local police had to cordon off 2 lanes of the busy Erhardtstrasse because the EPO had banned a demonstration on its land outside the Isar building ...

Anonymous said...

Thanks Merpel for starting this topic and thanks to all who have answered to this point so far. The discussion (here as well as on other blogs) has somehow lost track of the underlying problems and appears to focus mainly on the cheap tricks being played. Questions to be asked in my humble opinion should not only be "Which quality should we have in search/examination?“ or „How much does a patent cost for the applicant?“ but also "How many patents do we want to have granted?“ Too many patents may come expensive for society, no matter the level of fees involved. It sometimes appears that Europe´s governments (or at least their ministers competent for IP matters) like to see any number of patents being granted provided fees are being paid? But do we, does society really want even more patents in virtually every piece we use in our daily life? Should there hence be only incentives for granting patents or might it sometimes be regarded wiser to refuse those a patent who merely try to impede their more innovative competitors without adding any value themselves? For what reason should a smaller country accept a high number of patents being granted when fees are only paid for the big three states, which are, however, their main export market? SME´s of such countries will not be able to sell their products in those markets without risking lawsuits while their governments will not receive any fees from such a situation. Is this what these governments actually have accepted or did just nobody dare to ask them about their opinion?

Anonymous said...

Mr Pors,
While the 'interests' of the examiners are not the only ones to take into account, as the Gerechtshof identified, this isn't simply 'interests' but supposedly internationally respected human rights. These are not to be traded for other interests but to be respected unconditionally. Freedom of expression and association cannot be denied because other interests e.g. profit or power are given equal or greater value. Or should we allow young boys to go up chimneys again because it was more profitable for chimney sweeps? In a civilised society certain rights are, however awkwardly, not to be denied. Unless you are the EPO it seems even when those rights do not actually require a cost.

Anonymous said...

Max, the German model is European domination FULL STOP

If my spelling is inaccurate (a clear sign that my opinions are wrong and my beliefs are false) I must blame my Greek slaves, who I shall punish again later.

Anonymous said...

TO anon at 02:40
In the list of great causes rallying for support the lot of the downtrodden EPO examiner is not to be seen. To compare this with previous European battles for fundamental rights is more than silly.

Anonymous said...

Anon 0105,
A court had indicated that the EPO does not meet the UNDR That isn't exactly staff complaining about trivia. The EPOffice president has now placed his own judgement above that of a trio of national judges. How long before he overrules examiners or BoA when it is important for the EPO, in his opinion? The EPO recognised the court as they participated in the proceedings. But it had now shown at least bad faith in not accepting the judgement. As a staff member i am more concerned about that than i am about the office being held accountable vis-a-vis the UNDR.

Anonymous said...

Anon, 0841,
Out of interest, can we have a list of those who are not entitled to universal human rights? Bearing in mind the word universal...

Anonymous said...

"Max, the German model is European domination FULL STOP"

Whereas the French model is presumably that propounded by Monsieur de Gaulle.

To paraphrase:
"Europe is like a horse-drawn carriage. Germany is the horse and France the coachman ..."

It is no doubt such a glorious vision which inspires Benedictus Magnus ...

Anonymous said...

Have you fools not understood ?

The will of the President is the supreme law.

Those who question it are guilty of lèse-majesté !

"« Je n'ai jamais été aussi libre, insiste-t-il.
Je n'ai pas de ministère de tutelle, de Parlement, de gouvernement.
C'est nous qui fixons les règles, les discutons, les négocions. » Même liberté pour le fonctionnement de l'OEB, notamment pour mener le grand chantier de sa présidence ..."

http://www.usinenouvelle.com/article/le-stratege-du-brevet-europeen.N182255

Anonymous said...

Define what is internationally agreed by Universal Human Rights and the I'll consider answering the question.

And when the Dutch courts are given authority over a non-Dutch organization I'm sure their opinion will also count for something. As they are clearly experienced in such matters can someone provide all the case law where they have acted against diplomats or enforced the odd noise-abatement notice against an embassy?

Anonymous said...

SUEPO have been claiming for years that new working conditions will harm the quality of the patents the EPO issues.

http://www.iam-magazine.com/Blog/Detail.aspx?g=47f2bd84-67cb-4041-b407-eddd093f803b

If they have been saying it since 2007 at least there must be some evidence by now that it has actually happened.

Anonymous said...

Quality has been crap since around then yes. When will PBs reforms start to have a detrimental effect? Are time machines and perpetual motion machines now permitted at the EPO?

MaxDrei said...

Going by some comments above, when it comes to the question how many hours to spend examining each case, some EPO Examiners need to be helped to understand the reality of the world outside.

I'll try. Here goes.

Until 1978, the UK understood that the ultimate judgement "Obvious Y/N" is too complicated, and therefore too expensive, to undertake in anything short of full-blown inter partes litigation before a specialist patents court. So at the Patent Office it focussed on clarity and novelty, and left to the courts the ultimate judgement of obviousness.

Thanks to the EPO's excellent search tools, dedicated Examiners who care about "Quality", the Problem and Solution Approach and an enlightened book of EPO jurisprudence developed over 30+ years in huge numbers of full-blown adversarial inter partes opposition proceedings, the EPO can now "do" ultimate obviousness very accurately and efficiently. The jewel in the crown of patent law in Europe, I think.

But not in ex parte examination prior to issue. Unless you are going to refuse 50:50 cases, some claims will get through, that didn't ought to have been granted. You simply cannot grasp all the relevant prior art. Anybody in the real world understands that. Get used to it!

Examiners, it is wrong of you to go on forever, searching exhaustively, just because you entertain a hunch that there must be art out there...somewhere. Time is Money, also inside the EPO. In dedicating disproportionate and excessive searching time to individual cases, you are burning other people's money in your irresponsible self-indulgence.

It is frequently the case that an Opponent cannot find any better art than what DG1 has already found. That is deeply impressive, to parties outside Europe. Keep up the good work.

Shock. Horror. To a limited extent, EPO management is right, that time spent on each case does have limits. Stop whingeing please, at least about that. Instead, spend your time practising how to write better objections based on, say, Art 83 EPC so I don't have to file an opposition to get the enablement issue debated properly.

Anonymous said...

Come down off that shiny pedestal, Oh MaxDrei wondrous one.

It is not a question of "some will get through" and never has been.

The question instead is where DO you draw that line of what gets through? How do you know when one steps over the line from righteous diligence to "irresponsible self-indulgence"...?

Surely, the omniscient MaxDrei will not be perched on every examiner's shoulder screeching out where that line is in every examination. No, something more is needed than the shallow advice offered here.

Anonymous said...

Quality. Speed. Low cost.

Three desirable attributes for a patent grant system. But naturally you can't have all three together.

You might be able to get two out of three. Or you might find a compromise which balanced all three, but with none of them being ideal.

But the EPO has only ever managed one out of the three. The other two have consistently got worse and worse as time has gone by.

Something needs to change. When such changes happen in industry, it is quite common that employees complain about new ways of working. That's why the current complaints are not receiving universal sympathy.

Battistelli is doing something to bring about change. The question is not whether should be doing it, but whether the aggressive manner in which he pursues his objective is acceptable.

Anonymous said...

Good points by Anonymous @ 14:35.

But there is more, eh?

In part Battistelle is also NOT receiving universal acclaim as he pretends that his moves will capture all three, as has been noted, such capture is just not possible.

And the elephant in the room, of course, is that Battistelle will be receiving a very substantial payment for what in all honesty is merely moving deck chairs around on a still-floundering ship.

Is that acceptable? I know of only one person (and his cohorts) that would answer with anything even remotely resembling an enthusiastic (or even subdued) "yes."

Anonymous said...

Indeed, the interests of the examiners are not the only ones to take into account.
Somebody said that BoA story is just coin's other side. We notice examiners experiencing pressure to disobey EPC. If I as a chairman doubt the grant or refusal, I must not bother the second member but resolve it with the examiner in charge. Even if the division takes a decision, the director can overturn it. Amendments during the PCT (even if handwritten are allowed in Chapter II) may not be accepted. ...
Please allow us to work according to the law.

As far as speed is concerned - fire 10% o lazy black sheep, but not punish good examiners keeping at average +/- 20%.

Anonymous said...

"Quality. Speed. Low cost."

Can't have all 3?

Yes, you can. Me.

Anonymous said...

To the last anonymous:
this is not related to the topic, but I am interested in the subject, so you have it.
Do you mean an once in a time 10%purge, or an annual thing? If you calculate a little deeper, the latest may mean that every employee has a a 50% chance to be yanked when you suppose an average 20 years career, even a good one. You may do the math at the EPO. Unless the employees collectively rig the system by hiring sacrificial lazy lambs every year for substituting the yearly yanked sheep. Which for EPO examiners and a two year learning time (?) does not seem optimal.

This is only one example of the perverse effect of the "vitality curve" aka. "forced ranking" aka. "rank-and-yank".

It was well marketed by Jack Welch, but nowadays GE renounced it. And it had more caveats and complexities than the slogan "bottom 10 % out", even if the latest seems enticing to the rugged successful individualist (and likely to manager by fear like BB too).

So please do a reform, but think well before - aims, specificities of the organisation and/or of its "market" and/or of the workforce, unintended consequences...

Actually I think the "everybody aboce avrage" in another name is a lazy way (yank its proponent), namely slogan managing and applying a tool in a box from consultants. Similar to measure quality of performance by quantity, because computers give you the latest numbers and not the formers.

Anonymous said...

I don't think anyone will disagree that the decision how to treat patents is an easy one. As has been pointed out in several comments, in the past the EPO had one view of quality vs cost vs time, which now seems to be being changed. If this is what society REALLY wants, then it must no doubt be so as this is the definition of civil servant. The big question of course is whether society REALLY wants it. This answer to this question can start to get very philosophical, since it involves an amazing numbers of imprecise concepts and even political will.
What seems to be happening instead is that this difficult problem has been broken down into manageable bits and is being managed by statistical analysis, because statistics are true and thus not anyone's fault.
In doing so, however, it has been overlooked that if something is broken down, it doesn't work.

Turboblock said...

Ref: As far as speed is concerned - fire 10% o lazy black sheep, but not punish good examiners keeping at average +/- 20%. I remember back in the 20th Century that one President on being informed that about half the examiners had less than average production exclaimed "Fire them!"

As for assuming that the job gets easier with time/new methods: in the old days search and examination were separate. The search examiner not only searched but had to classify literature. Naturally, as this is not "production" it has been treated as less than essential by some managers. In addition in those days, there was one or maybe two people who managed the field, so there was a common approach to classification. Gos knows how it's done these days.


Finally: to the (t)wit who claimed that if the EPO examiners don't like their working conditions they should quit and get a job elsewhere:
a)rapid turnover of staff is a huge expense in terms of lost investment
b) finding technical people who can work in EN,FR and DE is not easy
c) that policy works really well at the USPTO doesn't it?

Anonymous said...

> a)rapid turnover of staff is a huge expense in terms of lost investment
b) finding technical people who can work in EN,FR and DE is not easy
c) that policy works really well at the USPTO doesn't it?


This is just one side of the coin.

Another side is that people can come and stay for 2-3 years. With a high workload and uncertainties over pension/health (while being foreigners) they would tend to leave for another job in a few years.

That means small pension and social security costs for the organisation. While during those 2-3 years, most probably, reasonable quality work will be delivered, given the background of EPO employees overall.

With respect to EN,FR and DE, I guess, it is known what is % of EN,FR and DE- language applications filed. Those percentages represent the actual language needs of the organisation.

And even if, at a certain point, hypothetically, it would be clear that it is difficult to build a career within the organisation, there will be always young graduates, who will be willing to spend 2-3 years in the international organisation, at the beginning of their career.

MaxDrei said...

What a fascinating comment from that last anonymous poster, who supposes that fresh graduates with skills in the EPO languages can deliver "quality" examination immediately on arrival so that even if they depart 2 or 3 years later, the Office will function at a high level of quality. In what jurisdiction is he sitting (I think I know).

Brain surgery is costly too. So is writing patent applications. Is the poster advocating the same solution for maintaining quality in those areas, while driving down cost so impressively? Who wants to trust themselves to any hospital or law firm he is running?

As far as I'm concerned, it takes just as much aptitude, training and experience to be a competent patent office examiner as it does to be a competent patent attorney.

Let's get one thing straight. Quality on a production line lires in ensuring that every finished item coming off the line is absolutely identical to all the others. Quality in a Patent Office however lies in ensuring that no two finished product items are the same. So how to deliver "Quality" is not the same either.

Old man of EPO said...

Anon 2038,
Indeed. But of course a limit had to be made somewhere or you will have unpaid interns on a zero hours contract as the final'cheaper option' while still meeting ISO9001!

Anonymous said...

> MaxDrei said...
What a fascinating comment from that last anonymous poster, who supposes that fresh graduates with skills in the EPO languages can deliver "quality" examination immediately on arrival so that even if they depart 2 or 3 years later, the Office will function at a high level of quality….).

MaxDrei, if you own a government monopoly on providing certain services, you can decide what is quality, what is skilled and what is sufficient knowledge of a language. I guess.

Anonymous said...

> MaxDrei said...
can deliver "quality" examination


"Quality" is, usually, achieved by competition and, in case of state monopolies, by a democratic feedback of the users. In case neither the first nor the second is in play, a result can be, let's say, different.

Humpty Dumpty said...

Anonymous @ 14:04 could not be more wrong.

Read the book 1984 and come back to this reality.

MaxDrei said...

I agree that competition can raise standards. See for example the competition amongst jurisdictions in Europe for the patent litigation business, and how it has wrought big improvements, at least in England and Germany.

And as for filing and prosecuting patent applications, in Europe one chooses whether to give one's business to the national Patent Offices or to the EPO. For the auto industry, for example, it is a fine judgement, whether to go to the EPO or to the German national Patent Office. Monopoly? What Monopoly?

Everybody sees, with mounting apprehension, how careless and short-sighted EPO management is over the present, long in gestation, competition-built, high quality EPO service offer. It is squandering it. That is why the present uproar is happening.

Anonymous said...

> "Quality" is, usually, achieved by competition

EPO, as it started, had to compete with strong national patent offices of Germany, UK, The Netherlands, etc. Now, when the EPO has grown in its members, national offices do not breathe anymore in the back, there is less motivation for quality.

Meldrew said...

"Quality" is, usually, achieved by competition

So let's start another European patent office that is:-
- EU run:
- in Alicante:
- filing in any EU language you like but accepting a second language for opposition:
- with translation of the entire specification into all languages paid for by the EU [or alternatively where you have to select predetermined meaningless terms to assemble your specification];
- with barely functioning IT systems that seem to show little attempt at listening to user input;
- with pensions being underwritten by the EU so that user fees do not have to do the heavy lifting of paying for examiners' old age;
- with examination being low cost (consisting of reaching for the nearest rubber stamp) except where a serious matter such as the placing of a comma is concerned;
- with all oppositions in writing with no oral proceedings;
- with infringement and validity being determinable by Community courts anywhere in Europe;
- with appeals in all matters ultimately available up to the CJEU;
- so awash with money (see pensions point above) that it finds it hard to know what to do with the stuff; and
- with a silly acronym hiding what it does (Patents In Semi-Serious OFFice seems too descriptive of function)
.

Any buyers?

Anonymous said...

> So let's start another European patent office that is:-
- EU run:
Any buyers?


Let me see.
It's a single market here, isn't it?

How about: in one Member State patent is in all Member States patent? Of course, plus the uniform EU examination/granting rules?

Subscribe to the IPKat's posts by email here

Just pop your email address into the box and click 'Subscribe':